standard of proof

noun · Beweismaß

The standard of proof is the Beweismaß, and here the systems part company. The German rule is the Vollbeweis of § 286 ZPO, the full conviction of the court that the fact is true; the English civil standard, the balance of probabilities, is not the German measure, and carrying it across silently lowers the threshold a German court applies.

Which translation, when

Regelbeweismaßthe German rule: under § 286 ZPO the court decides in free evaluation whether it holds a factual allegation to be true, and the required degree is the full conviction, in the settled formula a degree of certainty usable for practical life which silences doubts without excluding them entirely; absolute certainty is not required, but conviction it must be.

Überwiegensprinzip als Fallethe trap: the English civil standard, the balance of probabilities or preponderance of the evidence, asks only whether the fact is more likely than not; a preponderance school argued for that measure in Germany under Anglo-American influence, but it is rejected as against the wording of § 286 ZPO, which asks whether the allegation is to be held true, not whether it is more probable, so translating the English standard as the German Beweismaß silently lowers the threshold.

Einheit statt Zweiteilungthe architecture: German law demands the conviction of the court in all procedural codes, § 286 ZPO in civil and § 261 StPO in criminal proceedings, while the common law splits the standards, preponderance in civil and beyond reasonable doubt in criminal cases; in dubio pro reo is a rule of decision at the end, not a different measure, so the two-standard picture must not be projected onto German law.

gesetzliche Absenkungenthe carve-outs: the code itself lowers the measure in defined places, the Glaubhaftmachung of § 294 ZPO, contenting the court with a preponderant probability and open only where statute expressly allows it, and the damages estimate of § 287 ZPO, where the court may assess the amount of loss on a preponderant or higher probability; these are statutory exceptions, not the rule.

Why

The standard of proof is the Beweismaß, and no entry in the field of evidence carries a sharper system difference. The German Regelbeweismaß is the Vollbeweis of § 286 ZPO: the court, in free evaluation of the whole proceedings, must decide whether it holds the factual allegation to be true, and the settled formula of the case law asks for a degree of certainty usable for practical life which silences doubts without excluding them entirely; absolute or scientific certainty is not demanded, but a probability, even a substantial one, does not suffice. That is precisely where the English civil standard sits, the balance of probabilities or preponderance of the evidence, satisfied where the fact is more likely than not. A school influenced by Anglo-American and Scandinavian law argued for that preponderance measure in Germany, and the argument is rejected on the wording of § 286 ZPO, which asks whether the allegation is to be held true, not whether it is likelier than its opposite. A translation that renders the one standard with the other therefore does not vary style, it moves the threshold of the trial. The architecture differs too: German law demands the conviction of the court across the procedural codes, § 286 ZPO in civil and § 261 StPO in criminal proceedings, where the common law splits civil preponderance from criminal proof beyond reasonable doubt; in dubio pro reo is a rule of decision for the unresolved doubt, not a separate measure. The code lowers the measure only in defined places: the Glaubhaftmachung of § 294 ZPO, a preponderant probability open only where statute expressly allows it, and the damages estimate of § 287 ZPO for the amount of loss. So the safe rendering keeps Beweismaß and marks whose standard the source is speaking of.

Typical mistakes

The German civil measure is the full conviction of § 286 ZPO, in the settled formula a practical certainty that silences doubts, so rendering the balance of probabilities as the German Beweismaß lowers the threshold.
German law uses the conviction standard across civil and criminal procedure, § 286 ZPO and § 261 StPO, so the common-law split into preponderance and beyond reasonable doubt must not be projected onto it.
The lowered measures are statutory carve-outs, the Glaubhaftmachung of § 294 ZPO only where expressly allowed and the damages estimate of § 287 ZPO, so treating them as the rule misstates the system.

What matters

Rendering a passage on how strongly a fact must be proven, the translation should use Beweismaß, name the German measure as the full conviction of § 286 ZPO where German law governs, and keep the balance of probabilities as the foreign standard rather than as a translation of the German one.

Authority

§ 286 ZPO
§ 294 ZPO
§ 287 ZPO

What the machine misses

Machine output renders standard of proof as Beweisstandard or Beweismaßstab and often carries the English measure across with it, so the balance of probabilities appears as if it were the German threshold. That hides the full conviction required by § 286 ZPO, the unity of the German measure across civil and criminal procedure, and the narrow statutory carve-outs of § 294 and § 287 ZPO. The rendering silently lowers what must be proven.

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Examples

the standard of proof in civil proceedings	das Beweismaß im Zivilprozess
proof to the full conviction of the court	Beweis zur vollen Überzeugung des Gerichts
a preponderance of the evidence	eine überwiegende Wahrscheinlichkeit
the required standard of proof	das erforderliche Beweismaß

More notes on these sections

evidence Beweis

affidavit eidesstattliche Versicherung

causation Kausalität